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2024 DIGILAW 88 (BOM)

Zulekhabi v. Union of India

2024-01-10

G.A.SANAP

body2024
JUDGMENT/ORDER 1. Heard finally with the consent of learned Advocates for the parties. 2. In this appeal, filed under Sec. 23 of the Railway Claims Tribunal Act, 1987 (for short, 'the Act of 1987'), the challenge is to the judgment and order dtd. 31/8/2016, passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur whereby the claim for compensation filed by the appellants/claimants came to be dismissed. 3. Background facts: Appellant No.1 is the wife of the deceased Syed Zafroddin. Appellant Nos. 2 to 8 are the children of the deceased. The appellants claimed that on 5/7/2013 the deceased was returning from Akola to Nandura by Amravati Bhusawal passenger train. The deceased was having two valid journey tickets. According to the appellants, the deceased fell from a train at Nandura railway station. He sustained severe injuries and died. According to them, the death of the deceased was in an untoward incident. The deceased was a bona fide passenger with valid journey ticket. On this count, they claimed compensation. 4. The respondent-railway contested the claim. According to the respondent, the deceased was not traveling with a valid journey ticket. It was further contended that the deceased was negligent while alighting from the train at Nandura railway station. He tried to alight the train from the wrong side and therefore, he fell from the train. The death was, therefore, not in an untoward incident. 5. The claimants/appellants adduced the evidence before the Tribunal. The evidence was not adduced by the respondent/railway. Learned Member of the Tribunal, on consideration of the evidence, found that the appellants were not entitled to get the compensation and ultimately dismissed the claim. Being aggrieved by the judgment and order, the appellants are before this Court. 6. I have heard the learned Advocate Mr. C. A. Joshi, for the appellants and the learned Advocate Mrs. Neerja Choubey, for the respondent. I have perused the record and proceedings. 7. In the facts and circumstances, the following points fall for my determination: i] Whether the deceased was a bona fide passenger travelling by the train in question with a valid journey ticket ? ii] Whether the deceased died in an untoward incident as understood by the provisions of 123(c)(2) of the Railways Act, 1989? 8. Learned Advocate for the appellants submitted that two railway tickets were found on the person of the deceased at the time of the panchnama. ii] Whether the deceased died in an untoward incident as understood by the provisions of 123(c)(2) of the Railways Act, 1989? 8. Learned Advocate for the appellants submitted that two railway tickets were found on the person of the deceased at the time of the panchnama. Learned Advocate submitted that the deceased was travelling by the train in question with a valid journey ticket and therefore, the finding recorded by the Tribunal that the deceased was not a bona fide passenger could not be sustained. Learned Advocate submitted that in the factual background, the defence of negligence and/or death due to self inflicted injury is not available to the railway inasmuch as the deceased fell while de-boarding the train and sustained the injuries. Learned Advocate submitted that the railway has not adduced supporting evidence to substantiate its contention that the deceased while de-boarding the train from wrong side fell down and sustained injuries. Learned Advocate submitted that in the factual situation, the defence of negligence or death due to negligence is not available to the railway. Learned Advocate submitted that, in the teeth of the oral and documentary evidence on record, the findings recorded by the Tribunal that the death was not in an untoward incident cannot be sustained. In order to seek support for his submission, the learned Advocate relied upon the judgment in the case of Union of India .v/s. Rina Devi, (2019) 3 SCC 572 . 9. Learned Advocate for the respondent, relying on the DRM report submitted that the inquiry conducted revealed that the deceased was seen while de-boarding the train from the wrong side. Learned Advocate submitted that the act of the deceased de-boarding the train from the wrong side at Nandura railway station would amount to negligence and as such, the injury sustained due to his negligent act would be a self-inflicted injury. Learned Advocate submitted that the case of the appellants would be covered by clause No. (b) of the proviso to Sec. 124-A of the Railways Act, 1989. Learned Advocate submitted that two journey tickets were found on the person of the deceased and therefore, without explaining this fact, it could not be said that the deceased was a bona fide passenger. It is submitted that the findings recorded by the Tribunal suffer from patent illegality. 10. In order to appreciate the rival submissions, I have gone through the record and proceedings. It is submitted that the findings recorded by the Tribunal suffer from patent illegality. 10. In order to appreciate the rival submissions, I have gone through the record and proceedings. On going through the record and proceedings, I am constrained to observe at the outset that the Member of the Tribunal has not properly considered the material placed on record and thereby misdirected himself in applying the relevant provisions of law to the facts. 11. Undisputedly, the deceased was travelling from Akola to Nandura by Amravati Bhusawal Passenger Train. Two journey tickets were found on the person of the deceased at the time of inquest panchanama. The ticket numbers are mentioned in the panchanama. The respondent-railway has not contended that these tickets were not genuine and valid journey tickets. It is also not the defence of the railway that the tickets were either manipulated or planted for the sake of supporting the likely claim by the legal heirs of the deceased. Further perusal of the material does not permit me to accept the defence of the railway on this point. The deceased, as can be seen from the record, fell from the train at platform No.1 of Nandura railway station. He sustained injuries. He was shifted to the hospital. In the hospital, the doctor declared him dead. The family members of the deceased were not either accompanying him or present at the railway station. Therefore, the possibility of planting tickets is remote. The evidence therefore supports the contention of the appellants that the deceased was travelling by Amravati Bhusawal Passenger train with a valid journey ticket. Therefore, the findings on this point recorded by the Tribunal cannot be accepted. 12. The next important point that needs to be addressed is whether the deceased sustained the injuries while de-boarding the train and as such, whether the death was in an untoward incident. It is the defence of the railway that the deceased, in the process of de-boarding the train from the wrong side, fell down and sustained injuries. It is contended that the death was due to the negligence of the deceased. In my view, this conclusion arrived at in the report of DRM is not supported by any document. 13. The report made by the Deputy Station Superintendent of Nandura Railway Station, dtd. 5/7/2013, is at A-41. It is contended that the death was due to the negligence of the deceased. In my view, this conclusion arrived at in the report of DRM is not supported by any document. 13. The report made by the Deputy Station Superintendent of Nandura Railway Station, dtd. 5/7/2013, is at A-41. It was stated in this report that one unknown passenger had fallen from the train on the platform and he was taken to the hospital. This is the first document prepared on behalf of the railway officer after the incident. The next important document is the spot panchanama. The spot panchanama at A-72 has categorically stated the place of the incident. It is platform No.1 between two poles. The spot panchanama, therefore, supports the contention of the appellants that the deceased had fallen on the platform. The inquest panchanama is at A-69. The injury sustained by the deceased has been mentioned in the inquest panchanama. The accidental death entry is at A-67. In this document the place of the incident is mentioned as Platform No. 1. The DRM report at page A-30 categorically mentioned that one unknown person was lying in an injured condition on a platform and the said person was carried to the hospital by Banwarilal Bhagwadin. The conclusion drawn in the DRM report is not supported by the material. It was concluded by the DRM in his report on the basis of the material that the deceased tried to deboard the train from the wrong side and therefore, he fell down and sustained injuries. No oral evidence has been adduced by the railway to substantiate this defence. The deceased was travelling from Akola to Nandura. The material on record clearly indicates that indeed he travelled by train in question from Akola to Nandura. The material is also sufficient to conclude that he fell while de-boarding the train at Nandura railway station. 14. In the teeth of the above-stated factual background, the only question that needs to be addressed is whether the act of the deceased de-boarding the train before the train halted would constitute negligence resulting in the self-inflicted injury. In order to counter this situation, the learned Advocate has relied on a decision in the case of Rina Devi (supra). 14. In the teeth of the above-stated factual background, the only question that needs to be addressed is whether the act of the deceased de-boarding the train before the train halted would constitute negligence resulting in the self-inflicted injury. In order to counter this situation, the learned Advocate has relied on a decision in the case of Rina Devi (supra). For the purpose of addressing the factual and legal point involved in the appeal, the observations made by the Hon'ble Apex Court in para No. 25 would be useful. It is extracted below. "25. We are unable to uphold the above view as the concept of 'self inflicted injury' would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on 'no fault theory'. We may in this connection refer to judgment of this Court in United India Insurance Co. Ltd. versus Sunil Kumar laying down that plea of negligence of the victim cannot be allowed in claim based on 'no fault theory' under Sec. 163-A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de-boarding a train will be an 'untoward incident' entitling a victim to the compensation and will not fall under the proviso to Sec. 124-A merely on the plea of negligence of the victim as a contributing factor." 15. The Hon'ble Apex Court in this case has ruled that the liability in the claim is based on the principle of strict liability or no fault theory. It is held that the principle of contributory negligence cannot be applied in the case of strict liability based on 'no fault theory'. It is further held that the death or injury in the course of boarding and de-boarding a train will be an 'untoward incident' entitling a victim to the compensation and will not fall under the proviso to Sec. 124A merely on the plea of negligence of the victim as a contributing factor. In my view, the legal position settled by the Hon'ble Apex Court does not permit me to sustain the findings recorded by the railway Tribunal that the injuries sustained by the deceased in the factual situation could be termed self-inflicted injuries. In my view, the legal position settled by the Hon'ble Apex Court does not permit me to sustain the findings recorded by the railway Tribunal that the injuries sustained by the deceased in the factual situation could be termed self-inflicted injuries. In my view, therefore, the learned Member of the Tribunal was not right in rejecting the claim. The case would not be covered by the proviso to Sec. 124-A of the Railways Act, 1989. The case would be covered by the first part of Sec. 124 A of the Railways Act. The material on record, particularly the evidence, is sufficient to accept the case of the appellants that the deceased, as a bona fide passenger, was travelling in the train. He fell from a running train and sustained injuries. He died due to injuries sustained in the incident. Therefore, it goes without saying that the death was in an untoward incident. In my view, there is substance in the appeal. Therefore, I answer the above points in the affirmative. 16. In the context of the issue involved in this appeal it would be appropriate to make useful reference to the decision in the case of Union of India .v/s. Prabhakaran Vijaya Kumar and others, 2009(1) Mh.L.J.27. In this case, the Hon'ble Supreme Court has held that the expression "accidental falling of a passenger from a train carrying a passengers" has to be interpreted in such a manner that it serves the object of the statute. It is held that when two interpretations are possible, considering the beneficial nature of the legislation, the interpretation which advances the object of the statute and serves it purpose should be preferred. In my view, in this case, the expression "accidental falling of a passenger from a train carrying a passengers" requires liberal construction. By applying this proposition the passenger falling from the train while deboarding or boarding from wrong side of the train would be covered by the definition of an untoward incident. 17. Learned Advocates pointed out that, in view of the notification issued by the Ministry of Railways (Railway Board) dtd. 22/12/2016 in case of death claim, the respondent shall be liable to pay compensation of Rs.8, 00, 000.00 (Rs. Eight Lacs Only). Learned Advocates further submits that appellants are entitled to get compensation of Rs.8, 00, 000.00 but without interest. 17. Learned Advocates pointed out that, in view of the notification issued by the Ministry of Railways (Railway Board) dtd. 22/12/2016 in case of death claim, the respondent shall be liable to pay compensation of Rs.8, 00, 000.00 (Rs. Eight Lacs Only). Learned Advocates further submits that appellants are entitled to get compensation of Rs.8, 00, 000.00 but without interest. In view of the decision of the Hon'ble Apex Court in the case of Union of India v/s. Radha Yadav, (2019) 3 SCC 410 . the appellants may not be entitled to get the interest. 18. Accordingly, I pass the following order: (i) The first appeal is allowed. (ii) The judgment and order dtd. 31/8/2016 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur in Claim Application No. OA(IIu)/NGP/2014/0040 is quashed and set aside. The claim application is allowed. (iii) The respondent-railway is directed to pay Rs.8, 00, 000.00 (Rupees Eight Lacs Only) towards compensation to the appellants. (iv) The appellant No.1 shall be entitled to get 70 % of the amount of compensation. (v) The remaining 30% of compensation shall be equally divided amongst the appellants Nos. 2 to 8. (vi) The amount shall be deposited within four months from the date of uploading the judgment and order, in the bank account of the appellants, directly. The appellants shall provide the particulars of their bank account to the respondent- Railway. If the amount is not deposited within four months, the appellants would be entitled to get interest @ of 6% per annum from the date of this judgment till realization of the amount. 19. The First appeal stands disposed of. No order as to costs. Pending applications, if any, stand disposed of.